DMC/SandT/23/02
Yardimci Denizcilik Ve Ltd Sti v. Solymar
New York Arbitration: A.J.Siciliano as sole arbitrator; April 23
2002
NYPE CHARTERPARTY: ALLEGED FAILURE OF SHIP TO OBEY CHARTERER’S
INSTRUCTION TO VACATE LAST DISCHARGING BERTH; DELAY IN BERTHING CHARTERER’S
NEXT SHIP: SHUT-OUT CARGO; DAMAGES: WHETHER CLAIM AROSE UNDER CHARTERPARTY:
JURISDICTION OF ARBITRATOR
Summary
In an award on a preliminary issue of jurisdiction, which the
parties had determined that the arbitrator should decide, the arbitrator found
that a claim which arose from an alleged breach of charter, occurring during the
period of the charter, was within his jurisdiction, even if the event which gave
rise to the damages claimed occurred after redelivery.

DMC Category Rating: Confirmed

Facts
Yardimci Denizcilik, as owners of the vessel ‘Yardimci’,
chartered her for six months trading to Solymar, as charterers, under an NYPE
form of charterparty, dated November 6 2000. Although Solymar had the option to
extend the charter for an additional period, they did not do so, as they were
unhappy with the ship’s performance, and chartered another ship, the ‘Stadt
Kiel’ instead. The Stadt Kiel was scheduled to load her first cargo at the
same berth in Port Everglades as that at which the Yardimci was to complete
discharge of her final cargo under the Solymar charter. As passenger vessels
have priority berthing rights in Port Everglades, the port authorities there
imposed on Solymar a tight discharge and loading schedule. In order to meet that
schedule, Solymar planned first to discharge the Yardimci, and to redeliver her
on dropping her outbound sea pilot, and then to berth the Stadt Kiel. In fact,
as the Yardimci was late in reaching Port Everglades, Solymar brought the Stadt
Kiel to berth first and began loading her cargo. When the Yardimci did arrive,
Solymar arranged for the Stadt Kiel to vacate the berth, while the Yardimci took
her place at the berth and discharged her cargo.

On completion of discharge, Solymar alleged that the Master of
the Yardimci delayed her departure from the berth in order to load replacement
parts for the vessel’s damaged shaft generator. As a result, the Stadt Kiel
was delayed in re-berthing and part of her cargo could not be loaded in the time
allocated to her. The shut-out cargo had to be carried to destination by another
vessel, at an increased cost to Solymar of US$40,420. Meanwhile, the parties had
agreed to the Yardimci being redelivered at 2000hrs on April 6 2001, alongside
the berth in Port Everglades, instead of on dropping the outbound sea pilot.

The Owners of Yardimci commenced arbitration proceedings under
the New York arbitration clause in the charterparty for a balance of hire claim
amounting to US$41,402. The charterers counter-claimed for the US$40,420
expenses incurred as a result of the delay of the Yardimci in leaving the berth
in Port Everglades. The owners contested the counterclaim on the grounds that it
lay in tort, was not therefore within the jurisdiction of the arbitrator and
should be pursued in court. In support of this position, the owners argued
a)
that, by virtue of the agreement to redeliver the vessel at the berth, the delay
and all consequences that flowed from it took place outside the term of the
charterparty and therefore outside the charterparty arbitration clause;
b) that the essence of Solymar’s claim concerned the Stadt
Kiel, which, because of port congestion, was unable to load her full cargo.
Neither the port congestion nor the loading of the Stadt Kiel, both of which
took place after the Yardimci had been redelivered, were matters which concerned
the charterparty.

The parties agreed that Mr. Siciliano, acting as sole
arbitrator, should determine, as a preliminary issue, whether or not he had
jurisdiction to hear the Solymar claim. [Absent such agreement, arbitrators are
not allowed, under US law, to determine their own jurisdiction]

???

Award
The arbitrator held that Solymar’s counter-claim was within
his jurisdiction. Contrary to the owners’ argument, he did not think it enough
that the delay took place after the time at which redelivery of the Yardimci had
been agreed. In his view, the better test was whether the claim was the result
of "a breach, or threat of a breach which, when made, affects a party’s
continuing rights under the charterparty. In this case, the damages claimed by
the charterer are alleged to result directly from the Master’s stated
intention not to comply with charterer’s instruction to vacate the berth. It
is immaterial … that the actual damages claimed were incurred after redelivery
or concerned the inability of another vessel, the Stadt Kiel, to complete her
cargo."

The arbitrator also relied on the wording of the arbitration
clause itself, which opened with the words ‘Should any dispute arise between
Owners and Charterers….’ He found it significant that "the clause does
not limit arbitration to claims which only arise during the term of the
charterparty. The clause clearly refers to ‘any dispute’ which language I
consider sufficiently broad to capture the Charterer’s counter-claim."

???

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